RAFIQA AKHTAR Vs. ISHFAQ HUSSAIN

JUDGEMENT

(1.) CHIEF Judicial Magistrate, Srinagar took cognizance of offence punishable u/s 304 -A of Ranbir Penal Code (hereinafter RPC) on a complaint filed by the respondent and by order dated 19 -12 -1984 issued process against the petitioner. The allegation against the petitioner is that she refused to attend and treat a patient who had been operated in Bone and Joint Hospital Barzulla on December 8, 1984. Because of her refusal to examine and treat the patient, the latter succumbed to the injuries. This according to the complaint was a criminal negligence on the part of the petitioner who being on duty was under an obligation to examine, advice and treat the deceased who was profusely bleeding. As per facts stated in the petition of complaint, the deceased Mohd Shaban was admitted in Bone and Joint Hospital on 06 -12 -1984. The deceased was operated by Doctor Farooq Ashai who was head of Department of Orthopaedics on December 8, 1984. While the patient was still in the Post -Operative recovery room, his condition became serious and Doctor G.M. Wani, Assistant Prof. Bone and Joint Hospital directed the complainant to call Doctor Farooq Ashai. After examination of deceased, Dr. Farooq Ashai decided to operate the deceased once again to prevent bleeding. For this, services of Anesthetist was required and, therefore, the petitioner was summoned. However, even though she reached the Hospital in time, but refused to handle the case even though the deceased was profusely bleeding. The petitioner, it is alleged, refused to administer anesthesia in the absence of Anesthetist Resident who was not available. It is further alleged that the petitioner deliberately avoided to discharge her duty as Anesthetist and left the Hospital without examining the patient. Even though Dr. Abdul Hamid Darzi begged her to at least examine the patient who had been shifted to operation theatre and any delay in the operation may result in his death. Later on Doctor Saleema Kakroo Anesthetist posted in the Hospital came. But she also wanted the presence of Dr. Rafiqa because of the poor condition of the deceased. On her request the petitioner came and the patient was ultimately operated, but by that time, the patient had gone into shock and later expired. All these things have happened between 4.45 PM to 9.30 PM on 08 -12 -1984.

(2.) IT is thus an admitted case of the complainant that the petitioner was summoned to attend the emergency and arrived at 4.30 PM. She however, refused to administer anesthesia to the patient in the absence of the Anesthesia Resident. After she had left Doctor Saleema Kakroo came at 6.30 and on her request the petitioner came and the patient was operated at 7.30 PM in her presence. He however, died at 9.30. PM.

(3.) THE Chief Judicial Magistrate took cognizance of the case and issued process against the petitioner. The order summoning the petitioner and taking cognizance of the offence u/s 304 -A RPC is challenged on the ground (i) that the cognizance of the offence could not have been taken without sanction required u/s 197 of Cr. P.C. and (ii) that commission of offence punishable u/s 304 -A RPC is not disclosed from the facts stated in the complaint.